News

Administration of Justice

Two Democrats want to be the first new prosecutor in five decades

By Tim Johnson

Wednesday, May 30, 2018

Justice is not solely about crime and punishment, Judge Ira Uhrig commented when we spoke in his office early in the new year, but about ensuring people are heard and that the wrongs against them are righted. Justice is about establishing durable outcomes, he said.

Uhrig understood justice. He served as a judge on the Whatcom County Superior Court bench since 2004, and even longer as a judge and magistrate in other jurisdictions. He oversaw numerous cases. Judges play a vital role; but judges come into the story of justice rather late. Months, sometimes a year can pass between when a crime is first read and when the matter is settled in court.

Prosecutors arrive early, are present throughout, and their role in dispensing justice is an enormous one. Their powers of discretion are broad; and their approaches to the administration of justice, while governed by state law, can be diverse.

“You feel good going to work every day as a prosecutor,” Eric Richey says. Richey is chief criminal deputy prosecutor for Whatcom County. “You know you’re doing the right thing—because you don’t have to do this stuff. You can choose not to file a case if you feel that is the right thing to do. You can choose to resolve cases that make sense for people to find justice. We have the absolute ability to do the right thing, and that’s what we try to do every day.”

For the first time since 1975, Whatcom County will have a choice for a new prosecutor and new approaches to justice. Prosecuting Attorney Dave McEachran, who ran the office for nearly five decades, announced earlier this spring that he would not seek re-election. Richey seeks the position, as does James Erb.

The two candidates, two Democrats, announced they seek to replace him. And voters will have two opportunities to vote for them—in the August primary and again in the November general election.

“It’s a partisan position, and that means the election is governed by state law,” Diana Bradrick said. Bradrick is Whatcom County chief deputy auditor in charge of elections. The county prosecutor is also, oddly enough, a state-level position, charged with applying the laws of the State of Washington.

“I think there’s been some attempts to move the prosecutor’s race away from a partisan position,” Richey said. “I would love it to be a non-partisan race because what we do as prosecutors is not political. Our job is to protect the community, number one, seek justice (and that should never be political.”

Much has changed in criminal justice and the administration of prosecutors’ offices since McEachran first took the helm in Whatcom County; and the office will change under a new administration. The question for voters in selecting among these candidates is how much change, how quickly?

As chief criminal deputy prosecutor, Richey oversees a law office of 14 other attorneys responsible for criminal justice. He has served with McEachran for 25 years, and was endorsed by McEachran to replace him. He’s lived in Bellingham most of his adult life. He attended Western Washington University and the University of Oregon law school.

James Erb has served in the City of Bellingham Attorney’s Office since 2010. He was originally assigned to the city’s criminal division as a prosecutor, but was promoted to the civil division. Erb prosecuted hundreds of criminal cases in Florida, then—in a dramatic change—as a prosecutor for the Nooksack Indian Tribe. He attended the Florida State University College of Law.

Richey knows this prosectors office; Erb has a greater breadth of experience in other jurisdictions.

“In Florida, and particularly in central Florida where I practiced in the Tenth Judicial Circuit, it was an extremely conservative law-and-order approach to criminal justice,” Erb said.

“It was not uncommon for people—particularly people of color—to get arrested for controlled substance violations—possession. I saw on more than one occasion persons of color arrested for methamphetamine residue in a pipe. And based on their criminal history and on a scoresheet of sentencing guidelines, they would be sentenced to up to five years in the Florida state penitentiary for methamphetamine residue in a pipe. These are addicts who aren’t engaging in any other criminal behavior at the time,” Erb noted. “They just found themselves in a situation where they had this residue on them. There was no alternative provided, no treatment provided; and they weren’t going to receive any treatment in prison.

“I was part of that legal approach to recognize firsthand that that was a failed approach to criminal justice,” Erb said.

“I then took a position with the Nooksack Indian Tribe, and it was 180 degrees different. Punishment was the last potential resort that the tribal authority would want to resort to. They would treat their people like people, and would give them every opportunity to succeed where they had failed,” he said.

Richey agrees the federal approach to drugs and drug addiction—the War on Drugs—is a failure, and approaches to justice must change and the administration of the prosecutors office must change with it.

“Dave McEachran has been the prosecutor for a long time,” Richey said. “I think he’s done a really good job protecting the community. I think there are some things that need to change, though, and I want to make some policy decisions that are going to help the change along.

“I think more people need more ability to have treatment rather than incarceration. I think people need to be treated with more dignity and respect when they are being prosecuted by our system,” Richey said.

“I’m concerned about people who have addiction issues, who end up getting labeled as felons. I am also concerned with people with mental health issues getting treatment so that they do not commit serious crimes. I think we can serve them better as a community by offering them treatment rather than incarceration,” he said.

Erb agrees.

“We need to take some of the resources we currently devote to the criminal justice system and put those resources in mental health treatment, so we can get these people well,” Erb said. “Instead of treating them in a system that is not built for it—jailers are not mental health professionals.

“I would say we need to have a shift in focus and vision, more than reorganization,” Erb commented on the current administration. “I think we need to look at our hiring practices in the prosecutor’s office and find out if we might improve those practices. I look at the demographics of some of the staff in the office and that does not make sense to me. I feel like we’re ill served by having a staff that is not more diverse—diverse in viewpoints, opinions, thought processes and approaches. We have approximately 24 people in that office—the vast majority of those people are criminal prosecutors. We have a handful of people who are responsible for civil enforcement. Which is interesting, because the civil issues handled through that office are going to affect more people countywide than the criminal justice system.

“We need to make sure we’re hiring more minorities, people of color, to add to those viewpoints and conversations. Because prosecutors sometimes can be desensitized to their mission and role. Not with ill intent; but if they are taught to believe that what they are doing is securing justice, they can get blinders on to other factors that may be bringing people into the criminal justice system, and you arrive at what we’re seeing in Whatcom County, where the answer to any particular problem is incarceration,” Erb said.

Richey is confident in the skills and abilities of prosecutors in his office and would be cautious to change that.

“We’re making some changes to the makeup of the prosecutors office right now—some subtle and minor changes,” he said, expressing confidence in the quality of attorneys who work with him.

Both candidates noted concern with an overcrowded, decaying jail. And the lessons that can be drawn from the failure of a tax increase to replace the facility. In 2017, Whatcom County voters soundly rejected a ballot measure to create a two-tenths of 1 percent sales tax to fund a new jail.

“The jail failed not once, but twice,” Erb observed. “And I think it is important to go back to that first failure. The first failure I read as a slim majority of the community at the time saying, ‘This isn’t the solution we want for our county at this time. And you have to look at the jail as not just a capital facilities problem, overcrowded and failing, but it is also a symptom of a failed approach to criminal justice.

“We lock up people because they’re poor; we lock up people because they have mental health issues or substance abuse problems. These are things we’re not addressing by proposing to build a larger jail in Ferndale,” he said.

“In 2017, as a result of that failure, the county set up an incarcerations alternatives task force to study those issues and make recommendations around those issues, but at the same time the county put it back on the ballot,” Erb said. “I look at that situation and I take away that we’ve put the cart before the horse; we are trying to plan our future jail needs based on what is occurring with our jail now.

“I think the majority of the county would agree that what our approach to criminal justice and the jail is flawed, and we have improvements to make. So it is too early for us to build a large, expensive new jail if we’re going to try to tackle the bigger systemic problems, safely reduce the average jail population, and then figure out what our needs really are,” Erb said.

Both candidates support the work of the Incarceration Prevention and Reduction Task Force. The task force was put in place by Whatcom County Council after the first jail initiative failed at the polls. The task force set about to make recommendations to ease the jail population and improve restorative justice outcomes.

Among the recommendations of the task force is reform of the cash bail system.

“When a person comes into the justice system they go for a first appearance in front of a judge and the judge will set a bail amount,” Erb explained. “Sometimes the judge will set no bail and release a person their own recognizance, based upon their criminal history, their ties to the community, and things of that nature.

“If the prosecutor makes a recommendation for bail, what they are saying is this person is unlikely to come to back to court for their charges, they are a flight risk, or they represent a danger to the community,” Erb said. “And for those reasons we make sure they have some skin in the game—that they are paying bail or a bond—and that they will comply with the conditions set by the court so that they do not forfeit that cash.

“But my understanding is that the bonding companies in Whatcom County will not help defendants post a small bail amount, because the profit margins for them to do that are so low that it is not worth their time, effort and energy,” Erb said.

“It creates a perverse problem, where people who don’t have access to those resource remain in jail only because they can’t make their bail. This is a coercive system that leads people to plead guilty to resolve their charges just to get out of jail, “ he said. “Sometimes we see defendants who will plead guilty because the time they’ve served, waiting for their cases to be resolved through the normal course, is more time than they would expect to receive had they gone to trial and lost, let alone if they go to trial and win. Some are guilty of the charges they’ve been accused of; others just want to get out of jail; to get back to their lives as quickly as possible,” Erb said.

“Privatized bail really doesn’t make a lot of sense,” Richey agreed. “We don’t want a debtors’ prison. Privatized bail is a system that is preying upon the poor.

“We set bail based on a danger assessment,” Richey said. “That’s the main thing we do in my office. It’s not so much failure to appear but danger to the community that drives our decisions, the reason we set bail at higher amounts.

“I’m wondering at this point that, at some of lower amounts of bail, if we shouldn’t just offer a directive to the court of ‘no bail.’ We’re getting close to that. We’re talking about that right now.”

Crucial to the success of cash bail reform and alternatives to incarceration is a pretrial risk assessment tool, a set of metrics that would allow judges a more objective analysis of whether an arrested person is likely to appear in court and not get rearrested if released before trial. Erb is critical of the county’s pace in bringing this vital tool into use.

“It is important to point out that the reason the judges are at work on this this tool is because the prosecuting attorney’s office has been unwilling to adopt or to adapt one of these tools that are already in place and working in other communities,” Erb said.

“Stepping back, what these tools are trying to do is to bring data and objectivity to what is currently a completely subjective decision,” he said. “What these tools do is look at a multitude of factors, such as what services are available in the community, to attempt to assign a metric or a number that the judges can look at and say, ‘This person is not really a flight risk. This person is not really a danger to the community. They should be released with no bail, or minimum bail. Maybe this person would be a good candidate for electronic home detention’—which is significantly cheaper than locking people up in the jail. I think it is more than $100 a day difference to incarcerate a person in jail rather than at home with an electronic bracelet.”

Richey said money is the primary limiting factor to expanding the county’s electronic home monitoring program.

“I think right now the barrier is just financial,” he said. “We’ve set up a program in our district court, and we’re already running out of money. That’s troubling.”

“One of the things the City of Bellingham has done is to help pick up some of the costs of the hardware for electronic home detention, so the city does not discriminate against those who do or do not have the means to pay,” Erb explained. “That’s something the county should look at, too. And why not, if the savings are that substantial.

“Through home detention, you’re allowing people to stay connected with their family, to stay connected with their job, with their housing; and you’re avoiding disruption that is going to have downstream consequences.

“I think the county could learn a lot from the city’s approach, and implement some of these solutions, realize the savings, without compromising public safety,” Erb said.

This article is dedicated to the memory of Superior Court Judge Ira J. Uhrig, who recently passed away following a prolonged illness.

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